Citation NR: 9633002
Decision Date: 11/21/96 Archive Date: 12/02/96
DOCKET NO. 94-29 219 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to service connection for the cause of the
veteran’s death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
J. R. Bryant, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1942 to December
1945.
This matter is before the Board of Veterans’ Appeals (Board)
of the Department of Veterans Affairs (VA) on appeal from a
rating determination of November 1993, by the Boston,
Massachusetts, Regional Office (RO), which denied service
connection for the cause of the veteran’s death. Entitlement
to accrued benefits and eligibility for dependents
educational benefits were also denied. The appellant has
appealed the denial of service connection for the cause of
death.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the veteran’s service-connected
back disability materially contributed to cause his death.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim for
service connection for the cause of the veteran's death is a
well-grounded claim.
FINDINGS OF FACT
1. The veteran died on July [redacted], 1992, at the age of 80,
as a result of esophageal cancer; the certificate of death lists
no other significant conditions contributing to his death.
2. The veteran was service connected for chronic lumbar
spondylosis with chronic low back strain, rated as 40 percent
disabling at the time of his death.
3. Medical evidence demonstrating that disability related to
military service either caused, hastened, or contributed
substantially or materially to the veteran's death has not
been submitted.
CONCLUSION OF LAW
The appellant has not submitted evidence of a well-grounded
claim for service connection for the cause of the veteran's
death. 38 U.S.C.A. §§ 1310, 5107 (West 1991 & Supp. 1995);
38 C.F.R. § 3.312 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background. The veteran died on July [redacted], 1992.
According to the official death certificate, the cause of
death was esophageal cancer. An autopsy was not performed.
At the time of his death, service connection was in effect
for chronic lumbar spondylosis with chronic low back strain,
rated 40 percent disabling. In November 1993 service
connection for cause of the veteran’s death was denied.
The veteran was not service-connected for esophageal cancer
and there is no evidence of complaints of or treatment for
any such disorder in service and post-service medical
records. Additionally, the appellant has not submitted
statements by physicians which link the veteran's death by
esophageal cancer in 1992 with his recognized service which
terminated in 1945.
In November 1993, service connection for the cause of death
was denied as the available evidence failed to establish that
the condition listed on the death certificate as causing or
contributing to death was incurred or aggravated by the
veteran’s military service and it was not shown that his
service-connected back disability contributed substantially
or materially to his death.
At a personal hearing conducted in June 1994 the appellant
testified that the pain and discomfort resulting from the
veteran’s service-connected disability weakened him and
deprived him of the ability to “fight back” against
esophageal cancer. She further testified that he was
diagnosed in late May with esophageal cancer with no
premonitory symptoms and died approximately two months later.
She stated that the doctors wanted to operate but that the
veteran did not have the strength to withstand the surgery.
Analysis. The appellant is seeking service connection for
the cause of the veteran's death. The legal question to be
answered initially is whether the appellant has presented
evidence of a well-grounded claim; that is, a claim that is
plausible. If she has not presented a well-grounded claim,
her appeal must fail and there is no duty to assist her
further in the development of this claim because such
development would be futile. 38 U.S.C.A. § 5107(a). As will
be explained below, the Board finds that her claim is not
well grounded.
A surviving spouse of a veteran is entitled to dependency and
indemnity compensation if the evidence shows that a service-
connected disability either caused or contributed
substantially or materially to the cause of death. 38
U.S.C.A. § 1310 (West 1991 & Supp. 1995); 38 C.F.R. § 3.312
(1995). To establish service connection for the cause of the
veteran's death, the evidence must show that a disability
incurred in or aggravated by service either caused or
contributed substantially or materially to cause death. For
a service-connected disability to be the cause of death, it
must singly or with some other condition be the immediate or
underlying cause of death or be etiologically related
thereto. For a service-connected disability to constitute a
contributory cause of death, it is not sufficient to show
that it casually shared in producing death, but rather it
must be shown that there was a causal connection. 38 U.S.C.A.
§ 1310 (West 1991 & Supp. 1995); 38 C.F.R. § 3.312(a), (b),
(c)(1) (1995).
The appellant does not contend, nor does the evidence
suggest, that esophageal cancer, the condition shown on the
certificate of death as being the cause of death, was either
present in service or within one year following the veteran's
final separation from service. Nor is it shown that
esophageal cancer developed proximately due to the veteran's
service connected back disability. She instead argues that
the veteran’s strength was totally depleted because of his
back disability and as a result he was unable to fight the
cancer. However, the record is devoid of any medical
evidence reflecting that the veteran’s back disability
contributed substantially or materially to his death. While
the appellant sincerely believes that the veteran’s service
connected low back disability played a causal role in his
death, she is a lay person and not competent to offer an
opinion that requires medical knowledge such as a diagnosis
as to the cause of the veteran’s death. Espiritu v.
Derwinski, 2 Vet.App. 492 (1992).
Accordingly, since the appellant has submitted no medical
evidence that would support her contentions, the Board finds
that she has not met the initial burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that her claim is well grounded. Thus,
since the Board does not have jurisdiction to adjudicate her
claim, her appeal is denied. Boeck v. Brown, 6 Vet.App. 14
(1993).
ORDER
The claim for service connection for the cause of the
veteran's death is denied.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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